Note[1]
(Last revised April 2019)
(Read relevant part of indictment or count.)
1. That there was a terrorist group (if the group is named in the count, then this element should be worded “That there was a group named (specify) and it was a terrorist group”);
2. That (NOA) knew the group (or specify) had as one of its purposes or activities the facilitating or carrying out of a terrorist activity;
3. That (NOA) [participated in or contributed to], directly or indirectly, any activity of the terrorist group;
4. That (NOA) knowingly [participated in or contributed to] any activity of the terrorist group; and
5. That (NOA)’s purpose was to enhance the ability of a terrorist group (or specify) [to carry out or to facilitate] a terrorist activity.
Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find (NOA) not guilty of this charge.
If you are satisfied beyond a reasonable doubt of all these essential elements, [and you have no reasonable doubt[5] after considering the defence(s) (specify defences) about which I will instruct you], you must find (NOA) guilty of this charge.
However, the Crown does not have to prove[6] :
(a) That a terrorist group actually facilitated or carried out a terrorist activity;
(b) That (NOA)’s [participation or contribution] actually enhanced the ability of a terrorist group [to carry out or to facilitate] a terrorist activity; or
(c) That (NOA) knew the specific nature of any terrorist activity that may be facilitated or carried out by a terrorist group.
There are two related legal terms that you must apply. The first is “terrorist group”; the second is “terrorist activity.”
A terrorist group is one or more persons that has as one of its purposes or activities facilitating or carrying out any terrorist activity. (In some circumstances, it may be necessary to emphasize that a group can consist of only one person.)[7]
If the Crown alleges only a terrorist activity listed in s. 83.01(1)(a), instruct the jury as follows and omit the detailed instruction on the definition of terrorist activity in s. 83.01(1)(b) as set out below.
In this case, the terrorist activity alleged is (specify offence under paragraph (a) of the definition of terrorist activity in s. 83.01(1)). The law authorizes the government to designate certain offences committed in or outside of Canada as terrorist activities. I instruct you as a matter of law that the offence of (name offence listed in s. 83.01(1)(a)) is a terrorist activity.
The following instruction on the definition of “terrorist activity” is merely a summary of the lengthy definition contained in s. 83.01(1)(b). Further instruction will be necessary in particular cases. In all cases, the instruction must be tailored to the indictment and the evidence. In preparing your instructions to the jury, consider the full text of 83.01(1)(b) to ensure that the instruction is appropriate and complete in the circumstances of the case.
In broad terms, a terrorist activity[8] is one that intentionally causes harm in order to intimidate the public for a political [or religious, or ideological] purpose. I will now give you the legal definition of each of these components.
A terrorist activity is an act (or omission) committed in or outside of Canada that intentionally causes (specify one or more of the following: e.g., death, serious bodily harm, danger to life, health or safety, substantial property damage, or serious interference with or disruption of an essential service, etc.).
In addition, the act must be carried out with the intent of either:
(a) intimidating the public [or a segment of the public] with regard to its security; or
(b) compelling a person [or a government, or a domestic or an international organization] in [or outside] Canada to do [or to refrain from doing] something.
The act must also be committed in whole or in part for a political [or religious, or ideological] purpose [or objective, or cause].
To determine whether the Crown has proved the essential elements of this offence, consider the following questions:
If the Crown alleges a listed group, instruct the jury as follows:
The law authorizes the government to designate certain entities[9] as terrorist groups.[10] I instruct you as a matter of law that (specify) is a terrorist group. You must go on to the next question.
If the Crown alleges a specific non-listed group, instruct the jury as follows:
The Crown must prove the existence of the terrorist group alleged in the indictment beyond a reasonable doubt.
If specific persons are not particularized in the indictment, add:
The Crown need not establish that all of the persons alleged to be members of the terrorist group were actually members. It is sufficient to prove beyond a reasonable doubt that one or more of these persons comprised a terrorist group. You need not agree on which persons were members of the terrorist group.
I remind you that a terrorist group is one or more persons that has as one of its purposes or activities facilitating[11] or carrying out any terrorist activity. (In some circumstances, it may be necessary to emphasize that a group can consist of only one person.)[12] However, the Crown does not have to prove that the group actually facilitated or carried out a terrorist activity.
(If the group is not listed, review relevant evidence of both the existence of the group and its alleged terrorist activity).
Unless you are satisfied beyond a reasonable doubt that there was a terrorist group (or, if the group was named in the count, “that there was a group named (specify), and it was a terrorist group”), you must find (NOA) not guilty of this offence. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that there was a terrorist group (or, if the group was named in the count, “that there was a group named (specify), and it was a terrorist group”), you must go on to the next question.
I have just explained to you what a terrorist group is. You must now ask yourselves whether the Crown has proved beyond a reasonable doubt that (NOA) knew that the group had as one of its purposes or activities facilitating or carrying out a terrorist activity.
However, the Crown does not have to prove that (NOA) knew the specific nature of any terrorist activity that may be facilitated or carried out by the terrorist group.
If there is evidence of wilful blindness, an instruction along the following lines should be given:
(NOA)’s knowledge is also established if the Crown proves beyond a reasonable doubt that s/he was aware of indications that the group (or specify) had as one of its purposes or activities facilitating or carrying out a terrorist activity, but deliberately chose to ignore those indications because s/he did not want to know the truth.
If there is evidence that there was more than one terrorist group, the jury should be instructed that:
Proof that (NOA) knew that a group had as one of its purposes or activities facilitating or carrying out a terrorist activity is sufficient to establish that (NOA) had the requisite knowledge. You do not all have to agree which group (NOA) knew about. If each of you is satisfied beyond a reasonable doubt about one of them, the Crown will have proved this essential element.
(Review relevant evidence and relate to issue).
Unless you are satisfied beyond a reasonable doubt that (NOA) knew that the group (or specify) had as one of its purposes or activities facilitating or carrying out a terrorist activity, you must find (NOA) not guilty of this charge. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) knew that the group (or specify) had as one of its purposes or activities facilitating or carrying out a terrorist activity, you must go on to the next question.
To answer this question, you must first consider whether the Crown has proved beyond a reasonable doubt that (NOA) (specify the acts or omissions alleged).
If you are satisfied that this has been proved beyond a reasonable doubt, then you must go on to consider whether, by those acts (or omissions), (NOA) [participated in or contributed to] any activity of the terrorist group (or specify), whether directly or indirectly.
[Participating in or contributing to] any activity of the terrorist group is limited to conduct that creates a risk of harm that is more than minimal. It does not include interaction with a terrorist group that merely carries some risk of indirectly enhancing its abilities. Rather, it only includes conduct that a reasonable person would view as capable of materially enhancing the abilities of the terrorist group [to carry out or to facilitate] its activities.[14]
[Participating in or contributing to] an activity of a terrorist group includes, but is not limited to, the following:[15]
(Refer to all relevant activities that arise from the evidence):
(a) providing, receiving or recruiting a person to receive training;
(b) providing or offering to provide a skill or an expertise for the benefit of, at the direction of or in association with a terrorist group;
(c) recruiting a person in order to facilitate or commit a terrorism offence, or an act or omission outside Canada that, if committed in Canada, would be a terrorism offence;
(d) entering or remaining in any country for the benefit of, at the direction of or in association with a terrorist group; and
(e) making oneself, in response to instructions from any of the persons who constitute a terrorist group, available to facilitate or commit a terrorism offence, or an act or omission outside Canada that, if committed in Canada, would be a terrorism offence.
(The Criminal Code[16] identifies some factors that may be indicative of participation or contribution. Instruct the jury on any of the following factors, and any others, that arise from the evidence.)
Consider whether, for example:
(a) (NOA) used a name, word, symbol or other representation that identifies, or is associated with, the terrorist group;
(b) (NOA) frequently associated with any of the persons who constitute the terrorist group;
(c) (NOA) received any benefit from the terrorist group; or
(d) (NOA) repeatedly engaged in activities at the instruction of any of the persons who constitute the terrorist group.
Where the Crown relies on both “participation in” and “contribution to” the activity of a terrorist group, instruct the jury as follows:
Proof of either of these two forms of involvement is sufficient to establish that (NOA) participated in or contributed to the activity of a terrorist group. You do not all have to agree on the same one. If each of you is satisfied beyond a reasonable doubt about one of them, the Crown will have proved this essential element.
If there is evidence that the accused may have been involved in more than one group, instruct the jury as follows:
Proof that (NOA) [participated in or contributed to] the activity of any group is sufficient to establish that (NOA) [participated in or contributed to] the activity of a terrorist group. You do not all have to agree on which group (NOA) was involved with. If each of you is satisfied beyond a reasonable doubt about one of them, the Crown will have proved this essential element.
(Review relevant evidence and relate to issue).
Unless you are satisfied beyond a reasonable doubt that (NOA) [participated in or contributed to] any activity of the terrorist group (or specify), you must find (NOA) not guilty of this charge. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) [participated in or contributed to] any activity of the terrorist group (or specify), you must go on to the next question.
If you have found that (NOA) [participated in or contributed to] any activity of the terrorist group, you must go on to consider whether s/he did so knowingly.[17]
The Crown must prove beyond a reasonable doubt that (NOA) knew that his/her conduct was capable of enhancing[18] the terrorist group’s ability to facilitate or carry out its terrorist activity. In other words, (NOA) must be aware of the potential effect of his/her conduct on the terrorist group.
(Review relevant evidence and relate to issue).
If there is evidence of wilful blindness, an instruction along the following lines should be given:
(NOA)’s knowing [participation in or contribution to] the activity of the terrorist group (or specify) is also established if the Crown proves beyond a reasonable doubt that s/he was aware of indications that his/her conduct amounted to [participation in or contribution to] the group’s activity, but deliberately chose to ignore those indications because s/he did not want to know the truth.
Unless you are satisfied beyond a reasonable doubt that (NOA) knowingly [participated in or contributed to] any activity of the terrorist group (or specify), you must find (NOA) not guilty of this charge. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) knowingly [participated in or contributed to] any activity of the terrorist group (or specify), you must go on to the next question.
The Crown must prove beyond a reasonable doubt that (NOA) meant his/her actions to enhance the ability of a terrorist group [to carry out or to facilitate] the terrorist activity. It is not enough that (NOA) knew his/her conduct would have that effect. That effect must have been his/her goal. A person cannot be found guilty of this offence merely for innocent or socially useful conduct carried out without any intention of enhancing the ability of the group [to carry out or to facilitate] terrorist activities.[19]
However, the Crown does not have to prove that the [participation or contribution] of (NOA) actually enhanced the ability of the terrorist group [to carry out or to facilitate] a terrorist activity.
(Review relevant evidence and relate to issue).
Unless you are satisfied beyond a reasonable doubt that (NOA)’s purpose was to enhance the ability of a terrorist group (or specify) [to carry out or to facilitate] a terrorist activity, you must find (NOA) not guilty of this charge.
If you are satisfied beyond a reasonable doubt that (NOA)’s purpose was to enhance the ability of a terrorist group (or specify) [to carry out or to facilitate] a terrorist activity, you must find (NOA) guilty of this charge.
(a) That a terrorist group actually facilitated or carried out a terrorist activity;
(b) That (NOA)’s [participation or contribution] actually enhanced the ability of a terrorist group [to carry out or to facilitate] a terrorist activity; or
(c) That (NOA) knew the specific nature of any terrorist activity that may be facilitated or carried out by a terrorist group.
1. That there was a terrorist group (if the group is named in the count, then this element should be worded “That there was a group named (specify) and it was a terrorist group”); and
2. That (NOA) knew the group (or specify) had as one of its purposes or activities the facilitating or carrying out of a terrorist activity; and
3. That (NOA) [participated in or contributed to], directly or indirectly, any activity of the terrorist group; and
4. That (NOA) knowingly [participated in or contributed to] any activity of the terrorist group; and
5. That (NOA)’s purpose was to enhance the ability of a terrorist group (or specify) [to carry out or to facilitate] a terrorist activity.
If any one of these essential elements has not been proved beyond a reasonable doubt [or if you have a reasonable doubt with respect to (specify defences)], your verdict must be not guilty.
If you are satisfied that all five essential elements have been proved beyond a reasonable doubt, you must find (NOA) guilty.
[1] In adapting these instructions for use in a particular case, pay careful attention to the wording of the indictment. Some indictments specify the alleged terrorist activity; some do not. Similarly, some specify a name for the group; some do not. Where either is specified, use the specified terms throughout these instructions.
[2] Follow the wording in the indictment, e.g., “participating in,” or “contributing to,” or “participating in or contributing to.”
[3] Follow the wording in the indictment, e.g., “to carry out,” or “to facilitate,” or “to carry out or to facilitate.”
[4] Where identity is an issue, remember to include any further instructions that may be relevant (e.g., eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.
Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G.), [1990] 2 S.C.R. 3.
[5] This instruction will have to be modified where the accused has a legal burden of proof, such as mental disorder and non-insane automatism.
[7] Note, however, that a “terrorist group” has been held not to include a single, self-radicalized individual: See R. v. Ali, 2018 ONSC 2838.
[8] The elements of “terrorist activity” are summarized in R v Khawaja, 2012 SCC 69, at para 25.
[9] An entity is defined as a person, group, trust, partnership or fund, or an unincorporated association or organization (s. 83.01 (1) of the Criminal Code).
[11] The word “facilitate” has been interpreted to mean “to make it easier” (R v Nuttall, 2018 BCCA 479, at paras 468-469). In some circumstances, it may be necessary to refer also to the matters the Crown does not have to prove in s. 83.19(2). See s. 83.01(2).
[12] Note, however, that a “terrorist group” has been held not to include a single, self-radicalized individual: See R. v. Ali, 2018 ONSC 2838.
[13] This mens rea requirement is based by analogy on the requirement in R. v. Terezakis, 2007 BCCA 384, at para 60 in relation to criminal organizations.
[14] R. v. Khawaja, 2012 SCC 69, says at paras 50-53 that the actus reus and mens rea requirements of this section exclude conviction for conduct that a reasonable person would not view as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity. Further, it is limited to conduct that creates a risk of harm that is more than minimal.
[17] See R. v. Khawaja, 2012 SCC 69, at paras 45-47.
[18] The concept of “material” enhancement is exclusively related to the actus reus and does not inform the knowledge and/or specific intent requirement.
[19] See R. v. Khawaja, 2012 SCC 69, at paras 45-47 and 53. The Court noted that the accused need not have intended a specific terrorist activity, for example the death of a person from a bombing. All that has to be intended is the enhancement of the terrorist group’s ability to carry out or facilitate a terrorist activity. On the other hand, this heightened mens rea requirement exempts those who unwittingly assist terrorists or do so for a valid reason. For example, a lawyer representing a known terrorist would not come within this provision unless his or her intent was specifically to enable the person to pursue further terrorist activities.